State agencies seek dismissal of pig case

May 10, 2013

BARAGA - Two state agencies have replied to a Baraga County farmer's legal complaint, and they are asking a court to dismiss her federal case.

Brenda Turunen, a member of the Keweenaw Bay Indian Community and Baraga County resident, along with her husband Roger, raise hundreds of "Hogan Hogs," a breed of pig they developed. The Michigan Department of Natural Resources could render the breed an invasive species - even if the pigs remain penned in - based on an order amended last year.

Brenda is seeking two "prayers for relief" through a complaint filed last month through the U.S. District Court for the Western District of Michigan, as detailed in a Tuesday Daily Mining Gazette article (bit.ly/13GM8Mh). The DNR and Michigan Department of Agriculture and Rural Development officially issued their response on May 2. Copies of the response were not obtained until after Tuesday's edition.

"Plaintiff (Brenda Turunen) asserts that she can ignore state law and own and raise these pigs," said part of the 23-page request for dismissal, "because she is a member of an Indian tribe whose predecessors signed a treaty in 1842 with the United States that guaranteed the tribe the 'usual privileges of occupancy' on land that the tribe had ceded to the United States in exchange for money and other consideration.

"Plaintiff asserts that raising any animals she wants on her farm - no matter how dangerous - is just such an occupancy privilege.

"There are many problems with Plaintiff's Complaint, both legal and factual," the response continued.

The DNR and DARD response claims "perhaps the most significant" problem with the complaint is that all rights of occupancy that may have been reserved to the tribes signing the 1842 treaty were extinguished 12 years later with an 1854 treaty. They claim this by arguing the extinguishment was recognized by the U.S. Court of Appeals for the Seventh Circuit in a 1993 case between the Sokaogon Chippewa Community and Exxon Corp.

"There is no treaty-protected right to raise animals of any kind," the response argues.

The DNR and DARD argue the treaties defend hunting, fishing and gathering - and that the historical record reflects that - but not commercial farming.

They also claim the complaint "fails to allege facts to support jurisdiction," meaning Turunen is filing her complaint as an individual, not as a "tribe or band," which is allegedly required by the jurisdiction statute.

Finally, they argue their agencies share immunity from lawsuits in federal court according to the Eleventh Amendment of the U.S. Constitution.

In the closing paragraph of the response, the state agencies say "there is no reason to deviate here from the ruling of the Seventh Circuit (Court). The issue before this Court is identical to the one decided in that case."

Brenda's attorney Joseph O'Leary disagrees.

"I think the cases they're relying on are off point," he said. "... I respectfully decline to dismiss my client's case."

O'Leary has 28 days from May 2 to file a full response to the agencies' request for dismissal. They will then have 14 days to reply to that response. If neither side backs down by then, arguments in the federal case will then be presented before a judge.

A separate state case filed last year by Brenda's husband Roger is still awaiting trial. He and four other plaintiffs throughout the state are fighting the DNR's Invasive Species Order itself, on a variety of grounds.

Attorneys involved in the five cases believe each case involves its own separate issues (one involves pet pigs; another hunting ranches; still another a family farm), but the state wants to lump them together under one motion and render one decision. An agreement has been established that will allow a judge, likely Marquette County Circuit Court judge Thomas Solka, to decide which parts of the cases can be lumped together and which will remain separate.

O'Leary believes at least three issues are specific to Roger's case, but now it's a waiting game of sorts on the state side, and O'Leary's response to the DNR and DARD will be the next step in the federal case.